Examiners’ reports 2018

Examiners’ reports 2018

LA1031 Legal system and method – Zone B

Introduction
The question paper followed a similar format to previous years with two minor changes. In Part A, the
comprehension exercise which used a paragraph from a previously unseen case was replaced with
three multiple-choice questions on the seen case, Walker v Commissioner of Police of the Metropolis
[2014] EWCA Civ 897, [2015] 1 WLR 312. In Part B the number of questions was reduced from a
choice of two questions out of nine to two questions out of six.

Comments on specific questions

PART A
General remarks
Part A has an allocated mark scheme for each part of Question 1 and these are indicated at the end
of each question; this is included to give students an idea as to how much time to spend on each
question. Marks are awarded for the point made as well as the clarity of the answer and explanation.
The bullet points indicate the points that should have been included. The correct answer to each
multiple-choice question is in italics. Please note that the case for LSM changes each academic year.
Question 1
(a) What charge was brought against Mr Walker and why was he acquitted of this charge
at his trial? (4 marks)
 Walker was charged with assault of a police officer in the execution of his duty.
 He was acquitted at his trial on the ground that his initial detention was unlawful
o thus an essential ingredient of the offence failed since PC Adams had not purported
or intended to arrest Walker and
o thus was not in the execution of his duty. This meant that Walker’s reactions were
reasonable.
(b) What are the grounds on which Mr Walker appealed? [3 marks]
 Was Mr Walkerʹs initial detention in the doorway unlawful, thus amounting to false
imprisonment?
 If so, was Mr Walkerʹs reaction to that detention a reasonable and proportionate exercise in
self‐defence?
 Was the purported arrest for ʺpublic orderʺ a valid arrest within section 28(3) of PACE?
(c) Explain how Sir Bernard Rix applies the decision in Collins v Wilcock to the appeal.
(11marks)
 Except when exercising a power of arrest, ‘a police constable had no greater powers than a
member of the public to detain another: therefore anything that went beyond generally
accepted physical contact was battery, the detention was unlawful’.

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 Battery is a form of trespass to the person… ‘any touching of another person, however
slight, may amount to battery’… the law cannot draw the line between different degrees of
violence, and therefore totally prohibits the first and lowest stage of it’.
 ‘If a police officer restrains a man, for example by gripping his arm or his shoulder, then his
action will also be unlawful, unless he is lawfully exercising his power of arrest.’
 No physical contact in this case (Walker) but the logic of Goff LJ’s judgment in Collins
‘demonstrates that if a police officer, not exercising the power of arrest, detains a person in
a way that goes beyond the acceptable conduct of an ordinary member of the public, then
that will be false imprisonment...
 It is not acceptable for an ordinary citizen to confine another in a doorway and so Mr
Walker’s detention and confinement was unlawful.
(d) What measure of damages was Mr Walker awarded a first instance and what does
Tomlinson LJ say about this award? (2 marks)
 He was awarded £5.00 and
 Tomlinson LJ describes this as ‘generous’.
Question 2
Mr Walker was charged with:
(a) Affray and battery of a police officer
(b) Affray and insulting a police officer
►(c) Assault of a police officer in the execution of his duty
(d) Detaining a police officer in the execution of his duty
Question 3
Which of the following claims did not come before the Court of Appeal:
►(a) Malicious prosecution
(b) False imprisonment
(c) Assault
(d) Battery
Question 4
Tomlinson LJ intimates that appeal is a borderline case and might have been decided
differently. Which of the following statements best describes his reasons for this?
(a) It might have been argued that PC Adams's words ‘Calm down mate or you will end
up getting arrested’ meant that PC Adams reasonably apprehended a breach of the
peace.
►(b) It might have been argued that PC Adams's words ‘Calm down mate or you will
end up getting arrested’ meant that PC Adams reasonably apprehended a breach of
the peace in terms of an assault on himself.
(c) It might have been argued that PC Adams's words ‘Calm down mate or you will end
up getting arrested’ antagonised the defendant.
(d) It might have been argued that PC Adams's words ‘Calm down mate or you will end
up getting arrested’ meant that PC Adams reasonably apprehended a breach of the
peace in terms of a repetition of the blow to Ms Lecky (the defendant’s girlfriend).

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PART B
Question 5
Explain the terms obiter dicta and ratio decidendi and discuss why the ratio of a case is said to
be vital in the operation of the doctrine of binding precedent.
General remarks
This question relates to Chapter 3 of the module guide. It required (1) a description or explanation of
the terms obiter dicta and ratio decidendi and (2) a discussion of why the ratio of a case is important
in the functioning of the doctrine of binding precedent within the English legal system.
Law cases, reports and other references the examiners might expect you to use
The cases used would depend on the approach taken to the discussion of binding precedent and
might include: Midland Silicone Ltd v Scruttons [1962] AC 446, National Westminster Bank v
Spectrum Plus [2005] AC 680, Austin v Mayor and Burgesses of the London Borough of Southwark
[2010] UKSC 28, London Street Tramways Ltd v London County Council [1898] AC 375, The Practice
Statement (Judicial Precedent) [1966] 3 All ER 77, Austin v Southwark London Borough Council
[2010] UKSC 28, Davis v Johnson [1978] 1 All ER 841 (CA), [1978] 1 ALL ER 1132 (HL), Young v
Bristol Aeroplane Co Ltd [1944] 2 All ER 293.
Common errors
The most common error, with this as with most questions, was a failure to answer the question
directly. Many candidates reproduced a standard answer on the topic of binding precedent. A
significant number of candidates ignored the first part of the question, which was straightforward, and
did not explain the terms obiter dicta and ratio decidendi.
A good answer to this question might…
start by explaining the meaning of the terms obiter dicta and ratio decidendi and how the ratio of a
case is the legal rule that emerges from a court’s decision and is regarded as binding by later courts.
One possible way to develop a good answer was to explore the terms in some detail considering how
the ratio must be formulated by identifying the material facts and the application of legal principles to
these facts. Many good answers discussed the importance of the ratio in terms of stare decisis and
the need for consistency, fairness and predictably in the law. Some good answers looked at the
doctrine of binding of precedent from the perspective of the judiciary and discussed how the doctrine
was vital to maintaining judicial comity and how the hierarchy of the courts was reflected in the judge-
made rules in the operation of precedent.
Student extract
The question requires a discussion of the ratio decidendi and obiter dicta of a case and how the
ratio plays a significant role in the doctrine of binding precedent. So, it is important to know how
the courts follow the ratio and methods used to discontinue the usage of a ratio and also how
the doctrine works…
[The answer then explained the terms ratio decidendi and obiter dicta.]
The major question is how vital is the ratio of a case? This can be examined by looking into
how the courts follow the doctrine of precedent. It would only be vital if there is a strict following
of the doctrine.
Historically, the House of Lords (now the Supreme Court) did not consider that they were
bound by the doctrine of precedent. In London Tramways the House of Lords decided that they
were bound by their decisions. This would mean that there was finality to decisions. In theory
there would no longer be conflicting ratios. However, a strict adherence would mean that the
courts would be bound by perverse judgments and this might constrain the development of the
law
So, in order for the House of Lords to have flexibility, they issued the Practice Statement in
1966, suggesting that they will be departing from earlier decisions when it is right to do so. This
meant that the doctrine of precedent would still be followed…

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It is important to note that doctrine of binding precedent is merely a practice adhered to by the
courts. There are no statutes or any other mechanism preventing the courts from not following
the doctrine. However, for certainty of the law it is a fundamental that the doctrine is followed.
[The answer then explains how little the Practice Statement has been used and discusses
Miliangos v George Frank, R v Shpiuri, Anderton v Ryan as examples of the use of the Practice
Statement. It then turns to confirmation of vertical effect of the doctrine in Cassell v Broome and
discussion of the horizontal effect of the doctrine in Young v Bristol Aeroplane.]
There are also instances where the obiter dicta may become important. This was recently seen
last year in Ivey v Genting where the Supreme Court unanimously endorsed the change of the
test in Ghosh with regards to dishonesty. As this was not part of the ratio of the case it was
considered as the obiter dicta of the case. However, unanimously endorsing the decision meant
that it becomes highly persuasive and likely to be followed by the lower courts… It seems that
the Supreme Court has made a significant change to the criminal law in an obiter statement in
a civil case…
In conclusion, the ratio of a case has a strong legal effect… The judiciary’s strict adherence to
the doctrine of binding precedent means that the ratio is vital to the operation. The major issue
that arises is that the ratio may be difficult to decipher in a case and even longer to emerge as
an established legal rule.
Comments on the extract
Interpretation of the question: the introduction effectively rewrites the question and enables the
examiner to see that the candidate has understood the question. It could be improved by giving the
examiner a brief outline of the essay explaining how the candidate would approach the question.
Relevance of the answer to the question: the answer is fairly well focused on the question. The
essay approached the main discussion by looking at both the vertical and horizontal dimensions of
binding precedent and one good thread running through the essay is that binding precedent is a
judicial rule and one that exists only through the reinforcement of the rule by the judges themselves.
The paragraph on how obiter dicta can be very persuasive was insightful and the good use of a recent
example but it was not really woven into the essay.
Substantive knowledge: the candidate demonstrated a good understanding of the relevant cases
and materials and on the whole used them well.
Articulation of argument: this was very good in parts and slightly less good in others. There are
clear themes running through the essay and the conclusion highlights the main theme of the essay
linking the judiciary’s attitude to binding precedent as the key to its significance.
Question 6
Discuss the impact that the Human Rights Act 1998 has had on how judges approach statutory
interpretation.
General remarks
This question relates to Chapter 4 of the module guide. It required: (1) an explanation of the changes
brought about by the Human Rights Act 1998 (HRA) in terms of statutory interpretation; and (2) a
discussion of how – using examples from decided cases – judges have approached statutory
interpretation since the HRA came into force.
Law cases, reports and other references the examiners might expect you to use
Section 3(1) and s.4(2) HRA, R v A (No 2) [2001] UKHL 25, Ghaidan v Mendoza [2004] UKHL 30, A v
Secretary of State for the Home Department [2004] UKHL 56, Bellinger v Bellinger [2003] UKHL 21.
Common errors
The most common error was to recite a standard answer on statutory interpretation that discussed
only the literal, golden and mischief rules and the purposive approach. Although a brief discussion of
these approaches might usefully be included in the discussion, the main focus of the answer should
have been on the effects of the HRA on approaches to statutory interpretation.

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A good answer to this question might…

start by briefly explaining what statutory interpretation is and describing the role that judges play in
interpreting statutes. This might lead to a discussion of the traditional approaches to statutory
interpretation focusing on how the mischief, literal and golden rules and the purposive approach to
statutory interpretation may still be relevant in interpreting statutes and highlighting the changes
brought about the HRA, most notably the interpretive obligation under s.3(1) whereby statutes must
be ‘read and given effect in a way which is compatible with the Convention rights’. The case of
Ghaidan v Ghodin-Mendoza provides an in-depth discussion and detailed exposition of the
interpretative approach under s.3 HRA and provides an obvious starting point for a consideration of
how the HRA has altered judicial approaches to statutory interpretation including departing from the
plain meaning of words to provide a rights-coherent interpretation. An alternative route would be to
have looked at R v A (No 2) and consider how courts read ‘down’ to limit the statutory words; read ‘in’
to introduce words or alternative meanings; or read ‘out’ to exclude statutory provisions when giving
force to the s.3 obligation.
Student extract
The question requires a discussion on the methods used in statutory interpretation and how the
Human Rights Act 1998 (HRA) affected these methods. In order to answer the question it is
important firstly to know what the interpretation methods were and the major changes the HRA
brought. To fully understand the impact of HRA cases will be used to demonstrate the impact…
[The answer then described the literal, golden and mischief rules.]
The major section related to interpretation was s.3 of HRA which gave the judges the power to
interpret statutes in a way that was compatible with convention rights as far as possible. This
allowed judges to go far beyond what the actual wording of the statute suggests. It could be
argued that the judges were already interpreting statutes by finding the spirit of the act. This
method was the purposive approach...
Question arises, whether purposive approach that was used by judges is similar to HRA? And if
that was the case whether HRA really had an impact? It would seem that judges were already
interpreting statutes in a more flexible manner…
[The answer then discussed the relationship between interpreting a statute to find the intention
of parliament and interpreting a statute in an HRA compatible way.]
The effect of the provision was seen in R v A, where the question of whether Youth Justice and
Criminal Evidence Act could be read in accordance with convention rights. Under the law, the
defendants were not allowed to refer to complainants’ history in rape cases. Lord Steyn had to
strain the meaning of the words to allow admission of the evidence. This indicated that judges
could strain the words of an act to the point where it would not make linguistic sense. This is a
major departure from the older interpretation methods and also beyond the purposive approach
used by judges.
[The answer then discussed Ghaidan, noting the dissent of Lord Millet as to the boundaries
between parliament and the judiciary and continued by discussing declarations of
incompatibility and the Belmarsh case and Bellinger v Bellinger.]
The judges now have far greater powers in interpreting statutes and one would not be wrong in
questioning whether this may result in the judges making new law using HRA as a veil. The
recent case of Nicklinson suggests that judges are in fact reluctant to interpret statutes that
effect social policy changes in a drastic way. Here they are of the opinion that it would be best
for parliament to legislate on the matter.
In conclusion, it is submitted that although courts now have a greater flexibility under the HRA
compared to previous methods there is a limit to the flexibility. The recent development of the
purposive approach gave the power to courts to be more flexible but the HRA allowed courts to
strain meaning and read down meanings that is not seen in purposive approach.
Comments on the extract
Interpretation of the question: the introduction demonstrates that the candidate has understood the
question. It explains, in part at least, how the candidate would approach the question but this could
have been slightly longer and provide a clearer idea of the direction the essay would take.

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Relevance of the answer to the question: the answer is fairly well focused on the question. It
looked at the traditional approaches to statutory interpretation; it made connections between the
purposive approach and the approach under the HRA and made good use of the relevant case law to
demonstrate points. The discussion of the increased power of the judiciary using s.4 HRA
declarations of incompatibility is not really within the scope of the question but was not given undue
prominence in the discussion and so is not a serious fault.
Substantive knowledge: the candidate displayed a very good understanding of the relevant cases,
particularly R v A and Ghaidan, and used them to reinforce the point they made.
Articulation of argument: this was satisfactory; the essay is organised in a fairly logical way and
there are clear ideas running through it. The conclusion notes that, using the HRA, the judges have
gone well beyond the purposive approach emphasising a key point in the essay.
Question 7
Explain why diversity among the judiciary is said to contribute to its legitimacy and discuss
the extent to which the judiciary in England and Wales can be rightly described as ‘diverse’.
General remarks
This question relates to Chapter 5 of the module guide. It required: (1) an explanation of the term
‘diversity’ in the context of the English judiciary; (2) a discussion of how diversity can be said to be
important in terms of legitimacy; and (3) a consideration of whether the English judiciary can
accurately be described as diverse.
Law cases, reports and other references the examiners might expect you to use
This would vary significantly depending on the approach taken to the question, but the Constitutional
Reform Act 2005, the Judicial Appointments Commission and equal merits provision in the Crime and
Courts Act 2013 would likely be appropriate in most answers. References to the Essential and Further
readings at Section 5.10 of the module guide would also be anticipated.
Common errors
The most common error was to ignore the word ‘legitimacy’ in the question and/or to focus on the
system of judicial appointments before and after the Constitutional Reform Act 2005.
A good answer to this question might…
start by explaining what a diverse judiciary might look like and how, according to some viewpoints,
most notably Ewing, diversity within the judiciary is important because institutionally the judiciary
exercise legislative power as well as power over the fate of citizens in disputes and criminal matters.
This might lead to a discussion of diversity in terms of a judiciary that is reflective of the society it
serves and, in examining whether the English judiciary can be described as diverse, factors of race,
gender and social background might be noted as features of under-representation. Other issues such
as sexual orientation, age, educational background and non-barrister background could also be
considered as well as the interlinking of these strands. This could lead to a discussion of the attempts
that have been made to increase diversity, starting in the 1990s with the Constitutional Reform Act
2005, the appointment of the Judicial Appointments Commission and appointments based solely on
merit. The diversity statistics over the last decade show a modest increase in the numbers of women
appointed to the judiciary but less progress in terms of BAME and non-barrister background and this
would lead to the conclusion that the English judiciary is becoming more diverse but at a somewhat
slow pace. 
Question 8
Briefly describe the civil justice system and discuss the reasons for the increased use of
alternative dispute resolution in civil cases in England and Wales.
General remarks
This question relates to Chapter 6 of the module guide. It required: (1) a short description of the civil
justice system; and (2) a discussion of why litigants increasingly turn to alternative dispute
mechanisms to solve their disputes in England and Wales.

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Law cases, reports and other references the examiners would expect you to use
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), Woolf reforms, Civil
procedure Rules 1999, Jackson Report, Cowl v Plymouth City Council; Dunnett v Railtrack plc; Hurst
v Leeming; Halsey v Milton Keynes General NHS Trust; PGF II SA v OMFS Company.
Common errors
The most common error was to ignore the first part of the question and turn directly to the issue of the
alternative dispute resolution. Another common error was to describe the different types of ADR
processes without offering any reasons for why litigants might choose, or feel compelled to use, a
particular process.
A good answer might…
Start by describing the civil justice system by way of comparison with the criminal justice system
noting that civil justice is broader and more complex covering areas such as contract law, the law of
tort, land law, landlord and tenant, family law, administrative law, company law and employment law
and so on. It might describe the different burden of proof, the civil court structure and the fact that the
individual claimant (rather than the state) must initiate proceedings. It may note that ADR is an
umbrella term covering negotiation, mediation, conciliation, arbitration, adjudication, early neutral
evaluation and ombudsmen schemes and some stronger candidates may choose to pursue the
discussion of one or more of these in detail to illustrate the increased use of ADR and the reasons for
this. The most obvious reasons are the Woolf reports (1995 and 1996), which promoted the use of
mediation (fortified by the courts being able to impose financial penalties at trial if litigants
unreasonably refused to try ADR first; Cowl v Plymouth City Council; Dunnett v Railtrack plc; Hurst v
Leeming; Halsey v Milton Keynes General NHS Trust; PGF II SA v OMFS Company) and that
government policy through the promotion of AR in commercial, employment and family disputes since
the 1990s has pushed claimants towards ADR. The removal of legal aid for most civil disputes,
introduced by LASPO 2012, has also increasingly pushed claimants towards ADR.
Question 9
Briefly describe the criminal justice system and discuss how the Crown Prosecution Service
assess the public interest.
General remarks
This question relates to Chapter 7 of the module guide. It required: (1) a short description of the
criminal justice system; and (2) a discussion of how the Crown Prosecution Service evaluate the
‘public interest’ requirement when exercising their discretion about whether or not to prosecute.
Law cases, reports and other references the examiners might expect you to use
Section 7.5.1 of the module guide and the Essential reading noted at 7.5.2.
Common errors
Very few students answered this question and so it is difficult to make general remarks.
A good answer might…
start by describing the criminal justice system. The module guide describes it as ‘the institutional
structures for the prevention, detection and investigation of crime, as well as the processes for
prosecuting and adjudicating on criminal behaviour’ and this could lead to a description of the role of
the police in preventing, investigating, recording crime and detaining suspects. This might be followed
by an explanation of the role of the Crown Prosecution Service (CPS) once a defendant is charged
with a crime by the police. The route a defendant would take through the criminal court system (where
the CPS have decided to prosecute) would be the most obvious way to continue and including the
differences between summary, either-way and indictable offences. The main focus of the question
should be on the CPS decision-making as to whether prosecution is in the public interest and this
would include the six considerations of: how serious is the offence? What is the level of culpability of
the suspect? What are the circumstances of the harm caused to the victim? Was the suspect under
the age of 18 at the time of the offence? What is the impact on the community? Is the prosecution a
proportionate response? Some good answers drew on the example in the module guide of R v
Nicklinson, a case on assisted suicide, in discussing how the CPS assess the public interest.

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Question 10
Describe how juries are used in the English legal system and discuss why juries are
sometimes described as ‘unfair’.
General remarks
This question relates to Chapter 7 of the module guide. It required: (1) a short description of
how/when juries are used in England and Wales; and (2) a discussion of why juries might be
considered ‘unfair’.
Law cases, reports and other references the examiners might expect you to use
R v Ford [1989] 3 All ER 445, R v Smith [2003] EWCA Crim 283, Sander v UK [2000] ECHR 194, AG
v Dallas [2012] EWHC 156 (Admin), AG v Dalley and AG v Beard [2013] EWHC 2317 (Admin). The
Essential reading noted at 7.7, 7.8.2 and 7.8.3 of the module guide.
Common errors
The most common error was to reproduce a standard essay on juries.
A good answer might…
include some brief comments on the historical development of juries by way of context. It would
explain that juries are used in only a fraction of cases today and are primarily used in criminal trials on
indictment and in very limited circumstances in the Queen’s Bench Division and Coroners’ courts. A
consideration of the generally accepted view that juries are judgment by peers, used to deliver a
verdict and to increase lay participation as a means of increasing impartiality and public confidence in
the justice system would be a good way to link the underpinning philosophy with the function of the
jury. Juries function as independent fact-finders and this independence means that a jury decision
cannot be questioned or punished. In discussing ‘unfairness’, candidates might note that juries are not
required to give reasons for their decisions and then explore concerns that juries are racially biased
and the cases of R v Ford, R v Smith and Sander v UK. Alternatively, or additionally, it may also
discuss jury fairness and use of the internet (AG v Dallas; AG v Davey; AG v Beard).

PART C
Question 11
Dr Aaron and Dr Bahia, a married couple, both work as surgeons at Epsilon hospital. Bahia
had an affair with another doctor at the hospital and when Aaron discovered this he moved out
of the marital home. Bahia asked Aaron to meet her for coffee to discuss how they might
‘patch things up and get back together again’. When they met, while Aaron was ordering
coffee, Bahia removed the case from Aaron’s mobile phone and attached a tracking device to
the back of the phone and then replaced the case. The meeting ended badly with Aaron saying
he wanted a divorce.
The next day Bahia wrote to the General Medical Council falsely reporting that Aaron was
frequently drunk when carrying out surgery and that he was violent towards her and unfit to be
a medical doctor. Bahia also posted copies of the letter on noticeboards in Epsilon hospital.
Over the following weeks Aaron has notices how frequently Bahia is in the same coffee shops
and restaurants as him. Six days ago Aaron dropped his mobile phone and the case fell off
and when he was replacing the case he noticed the tracking device. Aaron reported this to the
police.
(a) Explain Bahia’s possible criminal liability for harassment. (11 marks)
(b) Explain Bahia’s possible criminal liability for stalking. (9 marks)
(c) Explain to the police officer investigating Aaron’s report, PC Chokri, how he might go
about seizing Bahia’s computer from her home. PC Chokri believes that the
computer contains evidence that will prove that she was tracking Aaron.
General remarks
The statute was discussed in a Lecture Plus in October 2017 and a sample question and detailed
answer and marking guide were also provided. The quality of answers varied enormously with some
students achieving 23/25 and others failing with marks of 1 or 2. It is difficult to understand how
students could fail so badly when ample resources for tackling the question were provided. The

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answers below illustrate how the statute should be cited and applied in answering the question.
Please note that the statute for LSM changes each academic year.
Law cases, reports and other references the examiners might expect you to use
The Protection from Harassment Act 1997, ss.1–3 and s. 7 as provided.
Common errors
The most common errors were: (1) failing to cite the specific sections of the statute to support a point;
and (2) not answering in a logical order, e.g. discussing stalking before establishing harassment.
a) Explain Bahia’s possible criminal liability for harassment. (11 marks)
Bahia’s (B) criminal liability for harassment will be examined by looking first at the actus reus and
secondly at the mens rea of the offence.
By s.2(1), the PFHA prohibits harassment where a defendant has pursued a course of conduct in
breach of s.1(1) or (1A). Since there is only one person, Aaron (A), who has potentially been
harassed, the relevant provision is in s.1(1). A breach of s.1(1) requires, under s.7(3)(a), that the
conduct in respect of a single person take place on at least two occasions. Has B harassed A on at
least two occasions? B has sent a letter to the GMC and posted copies of the letter around Epsilon
hospital; this is at least two instances of publishing the same material, once to the GMC and several
times on hospital noticeboards. We are not told how many noticeboards the letter is posted on but the
facts say boards not board and therefore it’s clearly more than one noticeboard.
Does this conduct amount to harassment? The Act does not provide definition of harassment but
s.7(2) says that harassment includes alarming a person alarm or causing them distress and s. 1(3)(a)
provides a defence where the course of conduct is reasonable thereby suggesting that the course of
conduct must be unreasonable to amount to harassment. B’s actions amount to harassment, she has
falsely stated that A was drunk when carrying out surgery and that he was violent towards her and
this false statement was made to the GMC and published around the hospital where A works. A, as a
medical doctor, would surely be alarmed and distressed to discover that he was maligned as a
drunkard and violent person and that not only the GMC were made aware of this but also his
colleagues and possibly his patients.
Having shown that B has committed the actus reus of the offence we must now consider if B has the
necessary mens rea. The mens rea is found in s.1(1)(b) and is that the defendant knows or ought to
know that her behaviour amounts to harassment. The test is an objective test and is set out in s.1(2)
where it asks if a reasonable person with the same information would think that the defendant course
of conduct amounts to harassment. This seems fairly straightforward; B’s actions would amount to
harassment from the standpoint of a reasonable person since they are unreasonable and likely to
cause alarm and distress.
b) Explain Bahia’s possible criminal liability for stalking. (9 marks)
Having concluded that B’s behaviours amount to harassment, we must now look at whether they also
amount to stalking under s.2A(1)(b). The first requirement, in s.2A(1)(a) has already been answered;
B’s conduct does breach s.1(1). B’s course of conduct, as has been shown above, also amounts to
harassment and fulfils s.2A(2)(a). The key question here is whether his acts are ones associated with
stalking. A non‐exhaustive list of associated behaviours is set out in s.2A(3) and s.2A(3)(a),(d), (e), (f)
and (g) maybe relevant on the facts.
It could be argued that s.2A(3)(a) applies since B used the tracking device to locate A and could be
said to be ‘following’ him. Similarly, s.2A(3)(e) might be fulfilled as B could be said to have loitered in
coffee shops and restaurants once she had discovered he was in a particular place. Section 2A(3)(d)
states that monitoring the use by a person of any form of electronic communication is a stalking
behaviour and B did attach a tracking device to A’s mobile phone, which is device used for electronic
communication. It is however, unlikely that s.2A(3)(d) is fulfilled because B does not appear to
monitoring what A is doing on the mobile phone but has merely attached the tracker to the phone. By
attaching the tracker to the phone, B has, however, interfered with A’s property and so s.2A(3)(f)
applies. Additionally, s.2A(3)(g) is relevant since, in attaching the tracker, B has ‘watched’ or ‘spied’
on A to discover where his whereabouts.
The mens rea for stalking in s.2A(2)(c) is identical to the requirements of s.1(1)(b) and has already
been established in showing the breach of s.1(1). It can therefore, be concluded that B’s actions as

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well as amounting to harassment are also acts associated with stalking and so it would be appropriate
to charge her with the greater offence of stalking.
c) Explain to the police officer investigating Aaron’s report, PC Chokri, how he might go
about seizing Bahia’s computer from her home. PC Chokri believes that the computer
contains evidence that will prove that she was tracking Aaron.
C, is a police constable and so can use s.2B(1) to apply to a justice of the peace (JP) for a warrant to
enter B’s home and search the premises. C will have to satisfy the JP that an offence under s.2A has
been committed; the discussion above has concluded that B would be likely to be convicted of the
offence of stalking and so this should be achievable. We are told that the computer is in B’s home and
that this was likely to have been used to monitor the tracking device B planted on A’s phone and so
this seems to satisfy the requirement in s.2B(1)(b) ‘that there is material on the premises, which is
likely to be of substantial value … to the investigation’. Provided the warrant authorises seizure of the
computer then C can take the computer and retain it under s.2B(2).

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